If suit pend ing for a debt, trus tees to re tain its amount. Penalties recovered. Second and other dividends. Creditor ne "No set-off shall be allowed by such trustees, of any claim or debt which shall have been purchased by, or transferred to, the person claiming its allowance, which could not have been set off by him, according to the provisions of this article, in a suit brought by such trustees."25 "If, at the time any dividend is made, any prosecution be pending against the trustees, in which a demand against such debtor may be established, the trustees may retain in their hands the proportion which would belong to such demand if established, and the necessary costs and expenses of such suit or proceedings, to be applied according to the event of such proceeding or suit, or to be distributed in a second or other dividend."26 "All penalties which shall be recovered by any trustees, pursuant to the provisions of this title, shall be deemed a part of the estate of the debtor, and shall be distributed as such among his creditors."27 "If the whole of such debtor's estate be not distributed on the first dividend, the trustees shall, within one year thereafter, make a second dividend of all the monies belonging to the estate of the debtor, then in their hands, among the creditors entitled thereto, as herein before specified; and in the same manner from year to year, so long as any monies belonging to the estate of such debtor shall remain in the hands of the trustees, they shall make a dividend thereof, among the creditors entitled thereto.""28 "Any creditor who shall have neglected to deliver to the apply earlier, trustees an account of his demand, before the first, second, glecting to to be paid at the later di- third, or other dividend, and who shall deliver his account to vidends. them before the second, or other subsequent dividend, shall receive the sum he would have been entitled to, on any former dividend, before any distribution be made to other creditors."" dividends. "If any dividend that shall have been declared, shall remain Unclaimed unclaimed by the person entitled thereto, for one year after the same was declared, the trustees shall consider it as relinquished, and shall distribute it, on any subsequent dividend, among the other creditors."30 "If, after settling the estate of any debtor, and after dis- Surplas charging his debts, entitled to a dividend, any surplus shall remain in the hands of the trustees, the same shall be paid to such debtor or his legal representatives." 9131 Powers of courts over Trustees subject to the order of court.] The trustees are declared to be subject to the order of the supreme court, and trustees. of the court of common pleas, of the county in which they were appointed, upon the ap; lication of any creditor, or of any debtor, in respect to whom they were appointed, in relation to the execution of any of the powers and duties confided to them."32 Trustees account to be rendered and filed.] Within ten days after any dividend made by the trustees, they are required to render on oath, and file with the clerk of the court of common pleas of the county in which they reside, or with a clerk of the supreme court, an account in writing of all their proceedings in the premises; stating, 1. Their disbursements, commissions, and the dividends made by them: 2. The names and residences of the creditors to whom dividends were made, and the names of those actually receiving them: 3. The property, monies, and effects of the debtor, remaining in their hands, and the value and situation of such property: And the trustees may at any time be compelled, by a rule of the supreme court, or of the court of common pleas of the county in which they reside, to render such account on oath, on the application of the debtor, or of any creditor.3 Trustees' account. 30 Ib. s. 42. 31 Ib. s. 43. 32 2 R. St. 49. s. 46. 33 Ib. 48. s. 45. SECTION IV. OF THE PROCEEDINGS ON CERTIORARI AND IN ERROR. Certiorari lies before report; its effect, consequences, &c. The proceedings on certiorari and in error are regulated by the following provisions of the revised statutes: "The proceedings had before any officer, under the provisions of this article, may also be removed into the supreme court, previous to any report, by certiorari, at the instance of the debtor or any creditor; but such certiorari shall not stay any proceedings on such warrant.' "Upon the examination of the return to such certiorari, the supreme court may correct any errors therein, and make such order as shall seem just; and may remit the proceedings to the officer who issued the warrant, or to any other officer having authority to issue such warrant; or the said court may proceed to do such acts and things, as remain to be done, to com plete the proceedings."35 "Whenever any authority shall be exercised by a court of common pleas, or any officer, pursuant to any provisions of this title, the proceedings may be removed into the supreme how allow court by certiorari, and there examined and corrected. But ed, &c. Upon a deci sion on a pe no such certiorari shall issue, unless allowed by a justice of the supreme court, or a circuit judge; nor shall it operate as a stay of proceedings, unless it shall be so directed in the order of allowance.""36 "Whenever a petition101 shall be presented, by any person. tition for a against whom proceedings shall have been instituted, as an trial, a cer 34 2 R. St. 14. s. 69. 36 2 R. St. 49. s. 47. 101 See ante, vol. 2. p. 646. the common absent, absconding, or concealed debtor, or by any person to tiorari lies to whom such debtor shall have assigned, or delivered any pro- pleas, perty, or made any payments, in the cases provided in the first article, of the first title, of the fifth chapter, of the second part, of the revised statutes, for the purpose of procuring the discharge of any warrant, issued against such debtor, and such petition shall have been referred to any court, for its determination thereon, or for trial by jury, such decision, when made by a court of common pleas, or the verdict of a jury, when rendered in a court of common pleas, may be examined by the supreme court, upon a certiorari, to be allowed by one of and a writ the justices thereof, and when made by the supreme court, the supreme shall be subject to a writ of error, as in other cases."37 of error to court. in clerk's thirty days, "Such certiorari, and such writ of error, shall be brought to be filed and filed in the office of a clerk of the court by which the office within decision was made, or in which the verdict was rendered, and stays within thirty days after such decision or verdict; during which time, the order and judgment of the court shall be suspended, and the property seized by virtue of any such warrant, and any bonds or other securities, taken according to law, in relation to such property, shall remain in the hands of the officer holding such warrant."58 ed in case of attaching "If such certiorari, or writ of error, be brought by any Bond requir attaching creditor, it shall not be effectual, unless accompanied error, &c. by by a bond, with two sufficient sureties, to be approved by the creditor court, to which such writ shall be directed, or by a judge thereof, to the person who shall have presented the petition so referred, upon which such decision or hearing shall have been made, as in the next sections directed."'39 where peti presented by "If the petition so referred was presented by any person; its form, proceeded against as such absent, absconding, or concealed tion was debtor, such bond shall be in a penalty, at least double the the debtor, value of all the personal property seized under such warrant, 37 2 R. St. 602. s. 67. 38 Ib. s. 68. VOL. II. 39 Ib. 603. s. 69. 84 or by one to whom he with a condition, that if such certiorari, or writ of error, as the case may be, shall be quashed, or discontinued, or if the decision of the court, upon which such writ is brought, shall be affirmed, that the obligors therein will, on demand, cause all the personal property, which shall have been seized by any such warrant, to be restored, in the same condition, or the value thereof to be paid to the person in whose possession it was, at the time of such seizure; that the proceeds of any part of such property, which shall have been sold as perishable, in the cases prescribed by law, shall be paid over to the person, in whose possession such property was, at the time of its seizure, on demand, and that they will pay all damages, which the person to whom such bond is given, shall sustain, by reason of the bringing such certiorari, or writ of error, and all cost, and charges, which shall be awarded by the court to which such writ is returnable."40 "If the petition, so referred, was presented by any person had assign to whom such debtor shall have assigned or delivered any pro ed, &c. perty, or made any payments, such bond shall be executed to such person, in a penalty double the value of the personal property delivered or assigned; or if no such property is alleged to have been delivered, or assigned, then in the penalty of at least three hundred dollars, with sureties, to be approved as in the last section prescribed."41 "The condition of the bond mentioned in the last section, shall be, that if such writ of error, or certiorari, be quashed or discontinued, or if the decision of the court, upon which such writ is brought, shall be affirmed, that the obligors will pay all damages, which the person to whom such bond is given shall sustain by reason of the bringing such certiorari, or writ of error, and all costs and charges, which shall be awarded by the court to which such writ shall be returnable."42 |